We were, however, surprised to find that no specific guidance setting out circumstances in which the use of the baton against the head might be justifiable and recommend that such detailed guidance about the use of batons be drawn up, and that in the meantime training reflects this concern.

That’s what I want to see – detailed guidance about when the police can hit people in the head with their batons.

In something of a contrast to the decisions in the Kadi litigation (see, e.g., this September 2010 decision), the General Court has found that Sofiane Fahas’ right to be heard was respected:

In the present case, a statement of reasons was sent to the applicant by the Council on 3 January 2008, following the adoption of Council Decision 2007/868/EC implementing Article 2(3) of Regulation No 2580/2001and repealing Decision 2007/445/EC (OJ 2007 340, p. 100), the wording of which was identical to that of earlier decisions mentioning his name. The applicant submitted his comments in a letter of 14 March 2008. The Council considered the content of that letter before deciding to retain the applicant’s name in the list at issue in the contested decision. In the letter sent to the applicant on 15 July 2008, which enclosed both the contested decision and a statement of reasons which was identical to those for earlier decisions mentioning his name, the Council stated that, after considering the applicant’s letter of 14 March 2008, it had come to the view that there was no new evidence on the file to justify a change in its position and that the statement of reasons previously notified to the applicant remained valid. It follows that, as regards the right to be heard, the Council gave the applicant the opportunity to submit his comments on the statement of reasons.

In Kadi, the Court treats the EU institutions’ actions as representing merely the formality of seeming to respect the right to be heard. In Fahas, the Court emphasises that the listing is based on the decision of an Italian investigating judge. But a decision made in 2000, long before the 2008 actions and before the 2010 decision of the Court. The basis for the original listing was that an investigating judge in Naples issued a provisional arrest warrant on 9 October 2000 on a charge participating in a conspiracy to establish a cell of the ‘Al Takfir and Al Hijra’ group in Italy. The Court says:

By justifying its action by reference to a decision of an investigating judge of a Member State and informing the applicant, by the letter of 15 July 2008, of the grounds for including him in the list at issue, the Council fulfilled its obligations under Community law.

It seems rather shocking that EU law can to some extent redress the lack of protection of rights in the Security Council (which is problematic in terms of international law) but not the apparent lack of protection of rights in the justice system of an EU Member State. The Court says it cannot do anything about what is happening in Italy:

it should be noted that the General Court does not have the power to review compliance with national criminal procedure. Such review may be carried out only by the Italian authorities or, if the party concerned brings an action, the competent national court. Likewise, in principle, it is not for the Council to decide whether the proceedings opened against the party concerned and resulting in such a decision, as provided for by the law of the relevant Member State, were conducted correctly, or whether the fundamental rights of the party concerned were observed by the national authorities. That power belongs exclusively to the competent national courts or, as the case may be, to the European Court of Human Rights..

The EU’s General Court yesterday annulled the EU’s latest attempt to freeze Yassin Abdullah Kadi’s funds, noting that the funds had been frozen for a period of 10 years:

In the scale of a human life, 10 years in fact represent a substantial period of time and the question of the classification of the measures in question as preventative or punitive, protective or confiscatory, civil or criminal seems now to be an open one

The Court neatly ducks the issues of whether the Court of Justice’s 2008 Kadi judgment is consistent with international law:

..the appellate principle itself and the hierarchical judicial structure which is its corollary generally advise against the General Court revisiting points of law which have been decided by the Court of Justice. That is a fortiori the case when, as here, the Court of Justice was sitting in Grand Chamber formation and clearly intended to deliver a judgment establishing certain principles. Accordingly, if an answer is to be given to the questions raised by the institutions, Member States and interested legal quarters following the judgment of the Court of Justice in Kadi, it is for the Court of Justice itself to provide that answer in the context of future cases before it.

The General Court states that developments since 2008 (for example the appointment of an Ombudsman) have not ensured an effective judicial procedure for review of decisions of the Sanctions Committee. And that the Commission never really engaged in any real attempt to give effect to Kadi’s rights of defence:

In the context of a judicial review which is ‘in principle the full review’ of the lawfulness of the contested regulation in the light of the fundamental rights .. and in the absence of any ‘immunity from jurisdiction’ for that regulation .., the arguments and explanations advanced by the Commission and the Council – particularly in their preliminary observations on the appropriate standard of judicial review in the present case – quite clearly reveal that the applicant’s rights of defence have been ‘observed’ only in the most formal and superficial sense, as the Commission in actual fact considered itself strictly bound by the Sanctions Committee’s findings and therefore at no time envisaged calling those findings into question in the light of the applicant’s observations.
..By the same token, the Commission … failed to take due account of the applicant’s comments and as a result he was not in a position to make his point of view known to advantage.
.. Furthermore, the procedure followed by the Commission, in response to the applicant’s request, did not grant him even the most minimal access to the evidence against him. In actual fact, the applicant was refused such access despite his express request, whilst no balance was struck between his interests, on the one hand, and the need to protect the confidential nature of the information in question, on the other…
In those circumstances, the few pieces of information and the imprecise allegations in the summary of reasons appear clearly insufficient to enable the applicant to launch an effective challenge to the allegations against him so far as his alleged participation in terrorist activities is concerned.

In the same week that the Select Committee on the Constitution published a report critical of provisions for retrospective legislation in the Banking Act 2009 (the statute allows for orders with retrospective effect where the Treasury considers it desirable), the House of Lords wrote about retrospectivity. The case involved a doctor with Nigerian qualifications who went to the UK for a clinical attachment and then applied for leave to remain as a postgraduate doctor. After she made the application, but before a decision on the application was taken, the immigration rules were changed to provide that persons with foreign medical qualifications were not eligible for permanent leave to remain in the UK. The immigration rules are rules which can create legal rights but as executive statements they are not subject to the same sort of presumption against retrospectivity that applies to statutes. The House of Lords held that changes in the immigration rules took effect when they said they took effect and new rules could be applied to applications pending at the time they came into effect.
The Law Lords were very critical of the fact that the Home Office declined to refund the application fee in these circumstances. Lord Hope of Craighead stated:

Fair dealing, which is the standard which any civilised country should aspire to, calls out for the fee to be repaid.

Lord Scott of Foscote:

So what benefit did the appellant receive for her £335? The answer is ‘None’. She paid her money on what turned out to be a false and misleading prospectus. The least that the Secretary of State can be expected to do is to return her fee.

Lord Neuberger of Abbotsbury also said that it was not “fair dealing” for the fee to be retained. The language of fair dealing and misleading prospectus has some resonance in these days of financial turmoil. This week, one can’t help reading them without thinking of the parliamentary expenses scandal and Gordon Brown’s announcement that he proposes to do away with self-regulation by the parliamentary gentleman’s club. Brown’s use of the gentleman’s club term is a bit ironic here (I think unintentionally so), as fair dealing is supposed to be one of the things gentlemen believe in.